Cobb v. State

• Decision Date: 29 May 2002
• Docket Number: No. 72807.,72807.
• Citation: 85 S.W.3d 258
• Parties: Raymond Levi COBB, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

85 S.W.3d 258

Raymond Levi COBB, Appellant, v. The STATE of Texas.

No. 72807.

Court of Criminal Appeals of Texas.

May 29, 2002.

Rehearing Denied August 21, 2002.

COPYRIGHT MATERIAL OMITTED

Roy E. Greenwood, Austin, for Appellant.

David P. Weeks, DA, Huntsville, Matthew W. Paul, State's Atty., Austin, for State.

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, HERVEY and HOLCOMB, JJ., joined.

Appellant was convicted of capital murder for intentionally killing Margaret Owings and her sixteen-month-old daughter, Kori Rae.¹ Based upon the jury's answers to the special issues, he was sentenced to death. On direct appeal to this Court, appellant claimed that Odessa police officers obtained his confession in violation of his Sixth Amendment right to counsel. Appellant argued that because he had already been charged for burglarizing the Owings' home and had an attorney appointed to represent him on that charge, his Sixth Amendment right to counsel attached to both that offense and to the related capital murder of Mrs. Owings and her daughter to which he confessed fifteen months later. This Court agreed and held that: "[o]nce appellant was indicted for the Owings burglary, his Sixth Amendment right to counsel attached to that offense and to the capital murder offense, which was factually interwoven with the burglary." Cobb v. State, ___ S.W.3d ___, 2000 WL 275644, 2000 Tex.Crim.App. LEXIS 32 (Tex.Crim.App. Mar. 15, 2000). The United States Supreme Court granted certiorari and reversed this Court's decision, holding that because the Sixth Amendment right to counsel is "offense specific," it does not extend to offenses that are "factually related" to those which have actually been charged. Texas v. Cobb, 532 U.S. 162, 167, 173-74, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). The case was remanded to us to consider appellant's remaining points of error. We now affirm the conviction and sentence.

We briefly review the pertinent facts. On December 27, 1993, Mr. Lindsey Owings called police to report a burglary at his home in Walker County and that his wife and child were missing. During their initial investigation, officers questioned appellant, who lived across the street from the Owings, but appellant denied any knowledge of the burglary or disappearances. Six months later, in July, 1994, however, appellant admitted to burglarizing the Owings house, but continued to deny any role in the disappearance of Mrs. Owings and her daughter. Following appellant's August, 1994 indictment for burglary, the trial court appointed counsel, Mr. Hal Ridley, to represent him. Mr. Ridley attempted to reach a plea agreement with the district attorney on the burglary charge, and on several occasions he therefore allowed law enforcement officers to question appellant outside his presence. Appellant remained adamant that he knew nothing about the disappearance of Mrs. Owings and her daughter. In June, 1995, appellant's father, Charles Cobb, bailed his son out of jail in Walker County, and appellant moved to Odessa, Texas, with his father.

The burglary charges were still pending in November, 1995 (almost two years after the Owings' disappearance), when appellant's father called Walker County officials from his home in Odessa. Mr. Cobb told Deputy Judy James that appellant had admitted to killing Mrs. Owings and burying her in the woods. Mr. Cobb also urged Deputy James to get an arrest warrant, because appellant planned to leave Odessa the next morning. Mr. Cobb repeated the substance of appellant's confession in a written statement to Odessa police officers, who then faxed it to the Walker County District Attorney's Office. Walker County officials used Mr. Cobb's written statement to obtain an arrest warrant for appellant on capital murder charges.²

Odessa police officers arrested appellant on that warrant and informed him of his Miranda³ rights. Appellant said that he would speak to the officers. The officers took appellant's written statement,⁴ in which he confessed to the murders. Appellant admitted that he was in the middle of burglarizing the Owings' house when Mrs. Owings walked in and saw him. He stabbed her in the stomach with a knife he was carrying and then dragged her body outside and to a nearby wooded area. When he came back to the house he noticed the sleeping child, so he picked her up, and carried her out to where he had left Mrs. Owings. He dug a hole, then the child woke up and "fell in the hole." He put Mrs. Owings in the hole and buried them both. He then stole various items from their home. Upon his return to Walker County in 1995, appellant led officers to the shallow grave in which he had buried mother and child.

II.

In three related points of error on remand, appellant challenges the admissibility of his written confession. He contends that Odessa police officers violated his right to counsel under the Fifth Amendment to the United States Constitution and under Article I, section 10 of the Texas Constitution in obtaining his confession.

Appellant argues that his August, 1994, Walker County indictment for the Owings burglary and the consequent appointment of counsel on that charge prohibited Odessa law enforcement officers from questioning him, some fifteen months later, about the dual murders he committed during that burglary, because the murders arose from the "same criminal episode."

A. Appellant's Fifth Amendment argument

We first observe that appellant does not argue that Odessa police officers violated his Fifth Amendment rights by failing to administer Miranda warnings. Rather, he argues that because he was appointed counsel in August 1994 regarding his burglary indictment, that legal representation encompassed any custodial questioning about the murders which occurred during that burglary. Therefore, appellant argues, questioning him about the murders outside the presence of his counsel violated his Fifth Amendment right to counsel and thus, his incriminating statement was illegally obtained.

Appellant's argument fundamentally misperceives the prophylactic purpose that Fifth Amendment Miranda warnings serve in custodial questioning.⁵ The Fifth Amendment is a guarantee against compelled self-incrimination. In this context, it guards against coercive custodial questioning by police; it protects a suspect from the possibility of physical or psychological "third degree" procedures. But it is the act of administering the Miranda warnings itself that primarily protects suspects subject to custodial interrogation. As the Supreme Court observed, "Full comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.⁶ A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted.⁷ Although Edwards v. Arizona⁸ provides an additional protection — if at any time during the interview a suspect requests an attorney, questioning must cease immediately — it is one that the suspect must affirmatively invoke.

In the instant case, appellant confessed to his father before any police officer began custodial questioning. There is no dispute that, once he was taken into custody in Odessa, officers gave appellant his Miranda warnings. Appellant was thus fully informed of his Miranda rights and he voluntarily and intelligently waived those rights before the police began questioning him. If appellant had changed his mind at any time during the interrogation, he could have then invoked his right to counsel or to silence in order to terminate the custodial questioning.⁹ Appellant simply did not do so.

Appellant argues instead that the Supreme Court's holding in Michigan v. Mosley¹⁰ does not apply to the facts of his case. In Mosley, the Supreme Court held that a suspect's invocation of his Fifth Amendment right to silence concerning custodial questioning about one crime did not bar officers from later reinitiating custodial questioning on an unrelated crime.¹¹ Appellant emphasizes that, in Mosley, the defendant was interrogated about and ultimately confessed to a "completely separate and distinct crime." Appellant contends that because the murders in this case arose from the same "criminal episode" as the burglary, rather than from a completely separate offense, the offenses are the "same" for purposes of Fifth Amendment right to counsel analysis and the Mosley holding simply does not apply in this instance.

Although Mosley did not address either the Fifth or Sixth Amendment right to counsel, it nonetheless answered the same question, regarding the Fifth Amendment, that the Supreme Court considered in this case regarding the Sixth Amendment. Namely, both constitutional provisions prohibit further questioning concerning the "same" offense when an accused invokes their protections. The critical question, then, is whether the burglary and the murders arising out of it are the "same" offense.

Appellant contends that, for Fifth Amendment purposes, the murders and the burglary are properly categorized as the same offense. He relies heavily on Texas Penal Code section 3.01 definition of the same "criminal episode."¹² Although section 3.01(1) speaks of "offenses committed pursuant to the same transaction[,]"¹³ the Supreme Court explained, in this very case, that for Fifth Amendment purposes, the "same" offense does not mean "factually related" or "factually intertwined" offenses.¹⁴ Rather, the proper test to determine whether two offenses are the same or different for purposes of Double Jeopardy is that set forth in Blockburger v. United States:¹⁵

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or...